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The White House argues that the email — in which Kavanaugh delegates to a colleague briefing of the attorney general on the use of military tribunals — strengthens the judge’s case. | Evan Vucci/AP Photo

Email exposes Kavanaugh to questions about role in terrorism response

Democrats are likely to question Supreme Court nominee’s involvement in legal case for torture and whether he misled Congress.

A 2001 email from Supreme Court nominee Brett Kavanaugh is likely to reignite a debate over his involvement in making the legal case for the Bush administration’s treatment of terrorist suspects — and whether he misled Congress about it.

The email, part of a tranche of documents that the White House turned over to the Senate Judiciary Committee in the run-up to Kavanaugh’s confirmation hearing, indicates that Kavanaugh, then a White House lawyer, helped to prepare then-Attorney General John Ashcroft to testify before Congress on the federal government’s monitoring of communications between federal inmates with ties to terror networks and their attorneys..

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Democrats are likely to seize on the communication to argue that he misled them during his 2006 confirmation to the D.C. Circuit when, pressed about whether he had helped to make the legal case for torture, he denied any involvement in discussions about the treatment of enemy combatants.

The White House, however, argues that the email — in which Kavanaugh delegates to a colleague briefing of the attorney general on the use of military tribunals — strengthens the judge’s case. The White House says the email demonstrates that a limited number of White House aides, siloed from their colleagues, helped navigate uncharted legal territory on the interrogation of terrorist suspects and that Kavanaugh was not among them.

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“To the best of my recollection Brett Kavanaugh was not involved with the legal issues surrounding the authorization of the use of enhanced interrogation techniques on high value detainees,” Alberto Gonzales, the White House counsel at the time, said in a statement provided by the White House. “At the time, a very limited number of personnel in the White House and at the Justice Department were read into that sensitive issue. Brett was not.”

Kavanaugh’s involvement in the George W. Bush administration’s treatment of detainees became a flashpoint in his 2006 confirmation hearing when Democratic Sens. Dick Durbin of Illinois and Patrick Leahy of Vermont pressed him on whether, in his capacity as White House counsel or later as White House staff secretary, he helped make the legal case for torture or recommended a candidate to the federal bench who had.

Kavanaugh denied any contemporaneous knowledge that the Bush administration was secretly waterboarding terrorist suspects, telling the senators he learned about the now infamous “Bybee Memo” that laid out a legal justification for torture years later through the “news media.”

“I think that memo did not serve the presidency ... well,” Kavanaugh told the Senate panel.

Though the senators asked Kavanaugh pointed questions about the torture of terrorist suspects, he answered them in broader terms. In a statement that Democrats would later seize on — and on which they are likely to seize again — Kavanaugh also denied involvement “in the questions about the rules governing detention of combatants.”

Durbin and Leahy pointed to a 2007 Washington Post report indicating that Kavanaugh had participated in a conversation about whether Anthony Kennedy, the Supreme Court’s swing vote, would uphold the constitutionality of the Bush administration’s decision to deny legal counsel to Americans deemed enemy combatants to a charge that Kavanaugh had perjured himself.

Kavanaugh, who clerked for Kennedy, told White House colleagues he believed Kennedy would vote against them. Leahy urged the Department of Justice to investigate Kavanaugh for lying to Congress, though it declined to do so, citing insufficient evidence.

The newly released email, a forwarded message from Kavanaugh to then-associate White House counsel Brad Berenson, is likely to spark another round of debate about the judge’s involvement in the Bush administration’s terrorism policies and a new set of accusations from Democrats, including Durbin and Leahy, that he misled them a dozen years ago.

In the Nov. 19, 2001, email exchange, Kavanaugh forwards to Berenson a message from Dan Bryant, then the Justice Department’s congressional liaison, asking for “participation of WH Counsel in the preparation of the AG” on topics including “military tribunals, monitoring of atty/client conversations, racial profiling, etc.” — a range of issues related to the Bush administration’s response to 9/11 about which Ashcroft was expected to be pressed on at an upcoming Senate Judiciary Committee hearing.

“I am happy to help on the attorney-client issue, but you should obviously handle tribunals,” Kavanaugh wrote Berenson, then his colleague in the White House counsel’s office.

In the 2006 hearing, Durbin and Leahy pressed Kavanaugh for his views on enhanced interrogation — the use of techniques like “threatening detainees with dogs, forced nudity, and forcing detainees into painful stress positions” (Durbin) and “documents relating to the administration’s policies and practice on torture” (Leahy).

Kavanaugh responded more broadly, telling the panel that he was “not aware of any discussions” about “the legal justifications or the policies relating to the treatment of detainees.”

“This was not part of my docket, either in the counsel’s office or as staff secretary,” he told Leahy.